Honour of the Crown at stake as Yukon fails to consult on mining application, says Nation

Tuesday, March 16th, 2021 3:13pm



“The Yukon government came and had a conversation about a similar project with the people and heard a really clear message about why this was a concern. But they wouldn't come up and have a conversation about this project…” — Nuri G. Frame, legal counsel for the First Nation of Na-Cho Nyäk Dun
By Shari Narine
Local Journalism Initiative Reporter

For the second time in eight years, the First Nation of Na-Cho Nyäk Dun is challenging the Yukon government in court over a land-use plan.

“This kind of litigation isn’t good for anybody and it’s really disappointing that, now twice, two successive Yukon governments have approached land-use planning in a way that has resulted in judicial action being the only recourse available to the First Nation,” said Nuri G. Frame, legal counsel for Na-Cho Nyäk Dun.

On March 15, the First Nation filed a petition in the Supreme Court of Yukon challenging the Yukon government’s decision to approve Metallic Minerals Corporation’s (MMC) application for quartz mining in the Beaver River land-use area. The Nation is arguing that no development should be allowed until the Beaver River land-use plan is approved. MMC’s project is located entirely in Na-Cho Nyäk Dun’s traditional territory and entirely within the Beaver River land-use area.

The Nation is also arguing that the Yukon government “breached its duties … flowing from the honour of the Crown” to consult through a number of existing agreements, including Sect. 35 of Canada’s Constitution.

In 2014, the First Nation of Na-Cho Nyäk Dun joined two other Yukon First Nations and two environmental groups in challenging the Yukon government for making significant changes to the Peel Watershed land-use plan at a time when they were only allowed to make modifications. The matter went all the way to the Supreme Court of Canada where, in 2017, a unanimous decision favoured the First Nations. The judge commented that “Yukon’s conduct was not becoming of the honour of the Crown.”

There are similarities between the two cases, says Frame. Neither time has the Yukon government acted diligently or in a spirit of reconciliation. It has not implemented the treaty promises outlined in the Na-Cho Nyäk Dun’s final treaty agreement. Chapter 11 of that agreement includes the “promise to engage in regional land use planning for the whole of the (Nation’s) traditional territory,” as stated in the court petition on the MMC application.

The most recent court petition outlines numerous times when Chief Simon Mervyn or band officials contacted Yukon’s Mineral Resources Branch or Energy, Mines and Resources Minister Ranj Pillai, by telephone or correspondence, requesting either “deep consultations” with the community on MMC’s application or for the approval to be delayed until the Beaver River land-use plan is completed, likely within the next 12 to 24 months.

The Nation was told that consultation was “not feasible.” The petition claims that “simply put, from the outset of its engagement” with the First Nation of Na-Cho Nyäk Dun concerning the MMC project, “Yukon was intent on approving the application and issuing the decision.”

Frame points out that in September 2020, while coronavirus pandemic measures were in place, numerous safe-distancing community consultations took place regarding an amendment to an application for a different project. The community input resulted in that application being denied.

“It reinforces why we are so concerned here. The Yukon government came and had a conversation about a similar project with the people and heard a really clear message about why this was a concern. But they wouldn't come up and have a conversation about this project. I don't know if it's because they didn't want to hear the message or what the motivation was for refusing to consult,” said Frame.

Lack of consultation is also in direct opposition to recommendations that came from the Yukon Mineral Development Strategy panel. The panel’s final report, released in December 2020, outlined seven guiding principles and six strategic priorities on how the government, First Nations and the mining industry can move forward in a “clear development pathway.”

The panel highlighted “the principles of reconciliation enshrined in the United Nations Declaration on the Rights of Indigenous Peoples and the recommendations of Canada’s Truth and Reconciliation Commission” which focus on meaningful consultation and respectful relationships.

The panel’s recommendations are clear, said Frame, and the Yukon government’s action “is totally inconsistent with the duty to consult which exists in Canadian law flowing from the honour of the Crown. But it’s impossible to satisfy that objective of free, prior and informed consent for mineral development if the public government making the authorization won’t even engage with the community who need to be informed and whose consent should be given.”

The three-member panel had representation from the Yukon government, the Yukon First Nations, and the mineral industry.

April 20 has been set for the case management conference. At that time decisions will be made as to how the case will move forward both generally and specifically, says Frame. Na-Cho Nyäk Dun is also asking for an interim injunction against both the Yukon government and MMC. But, in the meantime, the expectation is that since the Yukon government’s decision has been challenged,  MMC will not be undertaking any work in the Nation’s traditional territory.

“Na-Cho Nyäk Dun perspective is that this is an urgent matter and they want to see this move forward to a hearing as quickly as possible. This isn’t something that can or should have any delay associated with it. The (Nation) has been asking for months and months to have this decision paused while the broader land-use planning exercises that are underway in the watershed continue,” said Frame.

“Everybody benefits from that. Uncertainty doesn't do anybody any good. It's not good for government. It's not good for the First Nation. It's not good for industry. So I think the sooner we get this in front of a judge and the quicker we get this resolved, the better it will be for all parties involved.”

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.